Order Code RL32171 CRS Report for Congress Received through the CRS Web Limiting Court Jurisdiction Over Federal Constitutional Issues: “Court-Stripping” Updated January 24, 2005 Kenneth R. Thomas Legislative Attorney American Law Division Congressional Research Service ˜ The Library of Congress Limiting Court Jurisdiction Over Federal Constitutional Issues: “Court-Stripping” Summary Over the years, various proposals have been made to limit the jurisdiction of federal courts to hear cases regarding particular areas of constitutional law such as busing, abortion, prayer in school, and most recently, reciting the Pledge of Allegiance. Several such proposals passed the House in the 108th Congress, including an amendment to H.R. 2799 to limit the use of funds to enforce a federal court decision regarding the Pledge of Allegiance; H.R. 2028, to limit the jurisdiction of federal courts to hear cases regarding the Pledge of Allegiance; and H.R. 3313, to limit federal court jurisdiction over questions regarding the Defense of Marriage Act. Generally, proponents of these proposals are critical of specific decisions made by the federal courts in that particular substantive area, and the proposals are usually intended to express disagreement with cases in those areas and/or to influence the results or applications of such cases. Proposals of this type are often referred to as “court-stripping” legislation. The label arises from the fact that many of these proposals invoke the Congress’s power to regulate federal court jurisdiction, i.e., the courts’ power to consider cases of a particular class and in a particular procedural posture. It should be noted, however, that some proposals characterized as “court- stripping,” rather than focusing on jurisdiction, address what remedies are available to litigants or what procedures must be followed to bring constitutional cases. Although the United States Congress has broad authority to regulate in all three of these areas of judicial power — jurisdiction, procedure and remedies — this authority is generally used to address broader issues of court efficiency and resource allocation. This report, however, is limited to proposals to allocate judicial power in a way that affects or influences the result in cases concerning specific constitutional issues. There are at least three different types of “court-stripping” proposals: (1) limiting the jurisdiction of the inferior federal courts, (2) limiting the jurisdiction of all federal courts, and (3) limiting the jurisdiction of both state and federal courts together. While the Congress has broad authority under Article III of the Constitution to regulate the jurisdiction, procedures and remedies available in state and federal courts, this power is generally not used as a means to affect substantive law. Consequently, the federal courts have only rarely faced the question of what happens when the Congress acts under Article III to limit substantive litigation, and the Supreme Court has not squarely faced a modern law limiting jurisdiction to affect or influence litigation of constitutional questions. Thus, an analysis of these proposals relies to some extent on textual analysis and scholarly discussion. Congress’s authority to limit the jurisdiction of inferior federal courts appears relatively broad, so that laws limiting the jurisdiction of the lower federal courts would appear to raise fewer constitutional issues. Significant constitutional questions arise, however, with regard to whether Congress could eliminate both inferior federal court and Supreme Court review of constitutional matters. Further, elimination of review of constitutional issues by any court — state or federal court — seems the least likely to survive constitutional scrutiny. Various commentators, however, have suggested that limiting jurisdiction for any court for a particular class of cases raises questions regarding both the separation of powers doctrine and the Equal Protection Clause. Contents Background ......................................................2 Analysis.........................................................5 Limiting Consideration of Specific Constitutional Issues to State Courts, Subject to Supreme Court Review ............................6 Limiting Consideration of Specific Constitutional Issues to State Courts with No Supreme Court Review ..............................8 Prohibiting Any Court, State or Federal, From Considering a Specific Constitutional Issue .......................................10 Limiting the Remedies and Procedures Available to the Court after a Constitutional Injury Has Been Established ....................11 Laws Intended to Influence Constitutional Results Generally ...........11 Conclusion..................................................13 Limiting Court Jurisdiction Over Federal Constitutional Issues: “Court-Stripping” The power to hear cases regarding federal statutory and constitutional law is allocated among state courts, federal inferior courts, and the United States Supreme Court. The Congress has significant authority to determine which of these various courts will evaluate such cases, and the method by which this will occur. In its exercise of such power, the Congress has passed many laws that affect issues such as standards of judicial review, procedural rules, jurisdiction and remedies. For most purposes, the exercise of this power is relatively noncontroversial. Over the years, however, various proposals have been made to limit the jurisdiction of federal courts to hear cases in particular areas of constitutional law such as busing, abortion, prayer in school, and most recently, reciting the Pledge of Allegiance.1 Generally, proponents of these proposals are critical of specific decisions made by the federal courts in that particular substantive area, and the proposals are usually intended to express disagreement with decisions in those areas and/or to influence the results or applications of such cases. Several such proposals passed the House in the 108th Congress. For instance, in July 2003, an amendment was passed by the House to limit the use of funds to enforce a federal court decision regarding the Pledge of Allegiance.2 Then, in July 2004, the House passed H.R. 3313, the Marriage Protection Act, which would have limited Federal court jurisdiction over questions regarding the Defense of Marriage 1 Such proposals from the 108th Congress include H.R. 3799, the Constitution Restoration Act of 2004 (limiting federal court jurisdiction over cases regarding governmental acknowledgment of God); H.R. 1546, the Life-Protecting Judicial Limitation Act of 2003 (providing that the inferior courts of the United States do not have jurisdiction to hear abortion-related cases); S. 1297, the Protect the Pledge Act of 2003 (same); S. 1558, the Religious Liberties Restoration Act (amending jurisdiction of federal courts of over cases involving the Pledge of Allegiance, Display of the Ten Commandments, or use of motto “In God we Trust”); and H.R. 3190, the Safeguarding our Religious Liberties Act (same). 2 This amendment provided that "None of the funds appropriated in this act may be used to enforce the judgment in Newdow v. U.S. Congress, 292 F.3d 597 (9th Cir. 2002)." 149 Cong Rec H 7277 (July 22, 2003). The amendment appears to have been intended to prevent enforcement of the above-cited case, which held that because of the use of the words "under God" in the Pledge of Allegiance, a California school district's policy of sponsoring a teacher-led recitation of the Pledge was unconstitutional. Proposed by Rep. Hostettler as an amendment to H.R. 2799 (the proposed 2004 Appropriations Act for the Departments of Commerce, Justice, and State, the Judiciary, and Related Agencies), this language was adopted by the House. 149 Cong Rec H 7298 (July 22, 2003). It was not, however, included in H.R. 2673, the Consolidated Appropriations Act of 2004. See Conference Report on H.R. 2673, 149 Cong. Rec. H12335-12352 (November 25, 2003). CRS-2 Act.3 Finally, in September 2004, the House passed H.R. 2028, the Pledge Protection Act, which was intended to limit the jurisdiction of the federal courts to hear cases regarding the Pledge of Allegiance.4 All of these proposals appear to be distinguishable from other bills relating to judicial power in that they are narrowly focused on substantive constitutional issues. Further, proponents of these proposals are generally critical of specific decisions made by the federal courts in the particular substantive area, and the proposals are represented as intended to influence the results or applications of such cases. This report addresses the constitutionality of proposals to allocate or limit judicial power for the purpose of affecting or influencing the substantive result of cases regarding particular constitutional issues.5 These proposals are often referred to as “court-stripping” proposals. The label arises from the fact that many of these proposals invoke the Congress’s power to regulate federal court jurisdiction, i.e., the courts’ power to consider cases of a particular class and in a particular procedural posture. It should be noted, however, that some proposals characterized as “court- stripping” actually involve either changing what remedies are available to litigants or amending the procedures that must be followed to bring constitutional cases. Although the United States Congress has broad authority to regulate in all of these areas of judicial power — jurisdiction, procedure and remedies